On January 26, 2009, pursuant to a plea agreement, petitioner pleaded guilty to count eleven of a fourteen-count indictment. Count eleven charged petitioner with possession with intent to distribute more than 5 kilograms, specifically approximately 33 kilograms, of a mixture or substance containing a detectable amount of cocaine, a schedule II narcotic drug controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(ii).

On April 1, 2009, the respondent filed its sentencing position, stating its agreement with the facts and guidelines calculations set forth in the pre-sentence report. Respondent also stated that petitioner met the criteria for application of the "safety valve" provisions of United States Sentencing Commission, Guidelines Manual, § 5C1.2 (Nov. 2008).*fn1 The safety valve provision allows a sentencing court to determine a sentence in accord with the sentencing guidelines without regard to any statutory minimum sentence. Based on petitioner's total offense level and criminal history category, petitioner's appropriate sentencing range was 51 to 63 months, and respondent recommended that petitioner be sentenced at the low-end of that range.

On June 18, 2009, petitioner argued for a sentence of 27 months' imprisonment, citing the nature of petitioner's offense, and arguing for a lower sentence than a co-defendant to avoid unwarranted sentencing disparity. In response, on June 25, 2009, respondent argued that petitioner's first-time offender status was already reflected in his sentencing due to the eligibility of the safety valve provisions, allowing his sentence to be considerably less than the 120-month statutory mandatory minimum sentence.

On August 5, 2009, the Court sentenced defendant to a 51-month term of imprisonment and a five year period of supervised release. There was no appeal from this sentence.

On May 19, 2010, petitioner filed the instant motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in federal custody. Petitioner seeks that his sentence be set aside or be reduced due to ineffective assistance of counsel at the plea stage and the sentencing stage. On August 16, 2010, respondent filed its opposition. A reply was filed on September 17, 2010. After carefully considering the arguments raised by the petitioner, the Court hereby finds and concludes as follows.

II. LEGAL STANDARD

A motion pursuant to 28 U.S.C. § 2255 challenges a federal conviction and/or sentence to confinement where a prisoner claims "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." Sanders v. United States, 373 U.S. 1, 2 (1963).

Section 2255 provides that the Court shall conduct a hearing on a motion filed thereunder "[u]nless the motion and files and records of the case conclusively show that the [petitioner] is entitled to no relief." Rule 8 of the Rules Governing § 2255 Proceedings provides that:

[i]f the motion has not been dismissed at a previous stage in the proceeding, the judge, after the answer is filed and any transcripts or records of prior court actions in the matter are in his possession, shall, upon a review of those proceedings and of the expanded record, if any, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice dictates.

The decision whether to hold a hearing is "committed to the court's discretion," and § 2255 "requires only that the judge give the prisoner's claim careful consideration and plenary processing, including a full opportunity for presentation of the relevant facts." Watts v. United States, 841 F.2d 275, 277 (9th Cir. 1988) (citation and internal quotation marks omitted).

A petitioner arguing ineffective assistance of counsel under the Sixth Amendment must show (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced the petitioner. Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000) (citing Strickland v. Washington, 466 U.S. 668, 688, 695 (1984)). To meet the first requirement, a defendant "must show that counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. There is a heavy burden associated with this requirement, as there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. To meet the second requirement, a defendant "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. Essentially, the result of the proceeding must have been more favorable to the petitioning defendant had counsel acted differently. Id. at 694-94; see also Syers v. Schriro, 547 F.3d 1026, 1030 n.5 (9th Cir. 2008) ("Generally, a ...

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